With regard to vertical agreements, the main exemption by EU category is the category exemption for vertical agreements, which excludes many vertical agreements from the prohibitions covered in Chapter I and Article 101 (see exemption by category for vertical agreements). The assessment of the restrictive agreements covered by Article 101, paragraph 3, takes place in the actual context in which they occur and on the basis of the facts that exist at a given time. The assessment is sensitive to substantial changes in the facts. The derogation from Article 101, paragraph 3, applies as long as the four conditions in Article 101, paragraph 3, are met and no longer apply when they are no longer the case. For the purposes of the application of Article 101, paragraph 3, in accordance with these principles, it is necessary to take into account the initial invested by one of the parties and the restrictions necessary to realize and recover an efficiency-saving investment. Article 101 cannot be applied without due consideration of these ex ante investments. Therefore, the risk to the parties and the flowing investments that must be made to implement the agreement may lead to the agreement falling outside Article 101, paragraph 1, or meet the conditions of Article 101, paragraph 3, for the period necessary for the recovery of the investment. In the event that the invention resulting from the investment would benefit from some form of exclusivity granted to the parties under the rules on the protection of intellectual property rights, it is likely that the period of repayment of such an investment will not exceed the exclusivity period set by those provisions. In general, the exchange of truly public information is probably not contrary to Article 101, paragraph 71. Truly public information is information that is generally accessible to all competitors and customers regarding the cost of access. For the information to be truly public, the purchase of ore should not cost customers and companies that are not related to the exchange system more than to the companies that exchange this information. This is why competitors would not normally choose to exchange data that they can so easily collect in the market, and therefore it is unlikely, in practice, that public data will actually be exchanged. Although the data exchanged between competitors is often referred to as “public,” it is not really public when the costs of collecting data prevent other companies and customers from doing so.
The ability to collect market information, for example. B to collect it from customers does not necessarily mean that this information is market data easily accessible to competitors (73).